Wednesday, October 13, 2010

But Hey, Who Cares?

It was my plan to write about Billy Wayne Coble, more precisely, to write about the opinion in Billy Wayne Coble v. The State of Texas issued this morning by the Texas Court of Criminal Appeals. More precisely still, I was going to write about what the CCA had to say about psychiatrist Richard Coons who testified for Texas.

Quick back-up. In 1990, Coble was convicted of capital murder and sentenced to death for the killing of his wife's mother, father, and brother. In 2007, the Fifth Circuit affirmed his conviction but reversed his death sentence and ordered a new sentencing proceeding. In 2008, Coble was again sentenced to be killed.

Now, and here's where Coons comes into the story, in deciding whether someone convicted of capital murder should be killed, the jury in Texas is required to say

whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Put aside the oddness of the phrasing. Ignore to the fact that absent theoretical impossibility, there is no such thing as a probability of zero so that the technical answer will always be yes, there is some probability, however remote. What the jury is being asked to decide is whether this guy (or gal) will pose a continuing threat if not killed. Oh, and although if sentenced to life the person will, by law, never be out on the street again, the jury may answer "yes" on the theory that while harmless behind bars, the person might be violent if released.

It's a silly question not just because of how it seems to work but because, as even the CCA acknowledges, we really have no way of predicting.

Still, predict we do. The jury may rely solely on the facts of the crime. (Gee, it was awful, so yes.) But typically - at least in a decently tried case - there will be more. The defense may put on a psychiatrist or psychologist to explain that using various standard risk-assessment scales, the person is remarkably unlikely to hurt anyone. In Coble's second sentencing proceeding the defense did that. The defense also put on evidence that during 18 years in prison, he was a terrific prisoner. He didn't just stay out of trouble. He was a positive influence. Lots of good stuff. The state put on its own expert (Coons, see, we get to him) who said, and I'm oversimplifying but not a lot,

I've examined lots of people. I've testified in 50 capital cases. Coble will be dangerous. I don't have any actual studies to back up my system for figuring this out, and other psychiatrists would disagree with me, and certainly I just made up the system I use for predictions and I've never bothered to check and see if my predictions are accurate, but I am a psychiatrist so of course I know what I'm talking about.

That's my paraphrase. Here's part of what the CCA wrote.

All of these factors overlap and blend, but Dr. Coons knows of no book or article that discusses these factors or their overlap. He is not aware of any studies in psychiatric journals regarding the accuracy of long-term predictions into future violence in capital murder prosecutions or of any error rates concerning such predictions. Nor is he aware of any psychiatric studies which support the making of these predictions. Dr. Coons has never gone back and obtained records to try to check the accuracy of the “future dangerousness” predictions he has made in the past. He cannot tell what his accuracy rate is.
On redirect, the prosecutor asked Dr. Coons to read from a legal brief containing the names and titles of some articles on future dangerousness that had been filed in a different case, but Dr. Coons was not familiar with any of those articles.

Texas juries have been sentencing men and women to die for over 30 years based on this sort of testimony. To say that it's worthless is to give it far too much credit.

For years, Texas relied on Dr. James Grigson (Dr. Death, we called him). Before he was kicked out of the American Psychiatric Association, he went around explaining that he could tell who would kill again. He was, he said, never wrong. Evidence to the contrary was meaningless, he said. He was a compelling, if horrific, witness. But what he did, he explained to a reporter, was make the jurors feel good about their decision to sentence to die. So with Coons.

But now, as of this morning, maybe no more with Coons. Here's the CCA again (I'm omitting footnotes).

Here, there is no question that Dr. Coons is a genuine forensic psychiatrist with a lengthy medical career, but the issue under Rule 702 is whether his “future dangerousness” testimony is based upon the scientific principles of forensic psychiatry.
From this record, we cannot tell what principles of forensic psychiatry Dr. Coons might have relied upon because he cited no books, articles, journals, or even other forensic psychiatrists who practice in this area. There is no objective source material in this record to substantiate Dr. Coons’s methodology as one that is appropriate in the practice of forensic psychiatry. He asserted that his testimony properly relied upon and utilized the principles involved in the field of psychiatry, but this is simply the ipse dixit of the witness. Dr. Coons agreed that his methodology is idiosyncratic and one that he has developed and used on his own for the past twenty to thirty years. Although there is a significant body of literature concerning the empirical accuracy of clinical predictions versus actuarial and risk assessment predictions, Dr. Coons did not cite or rely upon any of these studies and was unfamiliar with the journal articles given to him by the prosecution.
Dr. Coons stated that he relies upon a specific set of factors: history of violence, attitude toward violence, the crime itself, personality and general behavior, conscience, and where the person will be (i.e., the free community, prison, or death row). These factors sound like common-sense ones that the jury would consider on its own, but are they ones that the forensic psychiatric community accepts as valid? Have these factors been empirically validated as appropriate ones by forensic psychiatrists? And have the predictions based upon those factors been verified as accurate over time? Some of Dr. Coons’s factors have great intuitive appeal to jurors and judges, but are they actually accurate predictors of future behavior? Dr. Coons forthrightly stated that “he does it his way” with his own
methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate. Although he had interviewed appellant before the first trial in 1990, Dr. Coons had lost his notes of that interview in a flood and apparently had no independent memory of that interview. He relied entirely upon the documentary materials given to him by the prosecution, including his 1989 report. Dr. Coons, therefore, did not perform any psychiatric assessment of appellant after his eighteen years of nonviolent behavior on death row, nor did he refer to any psychological testing that might have occurred in that time frame.
Based upon the specific problems and omissions cited above, we conclude that the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coons’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeeping hearing in this particular case. We conclude that the trial judge therefore abused his discretion in admitting Dr. Coons’s testimony before the jury.

It's really quite extraordinary. Of course, there are all those other folks about whom Coons testified. I don't know who they are (I imagine we'll learn in the next few days), but I wouldn't be shocked to find out that some have been executed based, in large part, on Coons' psychiatric blather.

Back in 1996 or thereabouts, I cut this story out of somewhere or other and stuck it in a file-folder.

In the New Mexico Legislature’s 1995 session, Sen. Duncan Scott, a Republican from Albuquerque, proposed an amendment to a psychologist regulatory bill offered by another
senator. The Scott amendment would have dramatically changed the face of New Mexico’s legal system: The amendment said: “When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.
“Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.” The bill, with the wizard amendment, passed the Senate by voice vote and cleared the House 46-14.
Unfortunately, Gov. Gary Johnson vetoed the legislation.

But I digress. For while the CCA made a surprisingly robust and important ruling, it does Billy Wayne Coble no good.

Because, you see, there was all that other evidence that despite 18 years of nonviolence, Billy Wayne was just biding his time. At the 2008 sentencing trial, he turned a number of times to look at his ex-wife in the gallery with what she described as a "weird evil grin."

So even without Coons, the jury would have sentenced him to die.

Anyway, I was going to write that post. But then my friend Hilary sent me this AP story. And how could I not praise the willingness of the federal prosecutor in Detroit to do the right thing and drop the criminal charges it just brought against a dead man.

Good for that AUSA. Good for the government. Just as soon as the late Herbert Daniels, Sr. proves that he is, in fact, late, the government will abandon the effort to convict him of running an illegal lottery.

4 comments:

I don't know much about law, but I understand a thing or two about science. Reproducibility is of the essence. If the question was whether Coble was diabetic, you could find expert after expert to answer the question, and for the most part, they would all follow the same methodology and all reach the same answer. That's what real, reliable science looks like.

Also, mature scientific tests don't require a lot of special education like a Ph.D. or an M.D. A doctor with a dozen years of education may suspect you have diabetes, but to confirm it, he's going to rely on a test performed by a technician with a 2-year associates degree. Because that's how reliable science works.

Sure. Of course, these guys aren't scientists; they're whores with medical degrees paid to say "I'm a doctor and I know he will kill again."

Actually, there's a whole discussion in the opinion about how psychiatry is one of the "soft sciences" where the tests of reliability and what counts as an adequate test are less rigorous. The tests devised by the CCA are especially lacking in rigor. But even then, Coons fails.

Hello, Jeff. Hilary here. I haven't made a definitive list of the peope against whom Coons has testified, but he did testify in the case of Andy Barefoot, as in Barefoot v. Estelle, where the Supreme Court, in the pre-Daubert era, said that Coons testimony was admissible, largely because it could be subject to cross-examination. Barefoot was executed long ago.

In June this year Texas also executed David Powell against whom Coons testified twice (original trial in 1978, retrial in 1991). Powell was a model inmate, just like Coble. I am sure there are others. Thanks for blogging on this topic, by the way.

It'd be an interesting study to see just what sort of track record Coons has on actually getting people killed. Harry Blackmun, as I recall, once referred to Grigson as a psychological prostitute. Certainly true of Coons. But unlike actual prostitutes, these guys don't just screw people - they kill them.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
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